The title for the proposed amendment was "Property Rights: Should Government Compensate Owners When Damaging the Value of Homes or Other Property?" Id. The proposed Constitutional amendment's ballot summary provided:

This amendment entitles an owner to full compensation when government action damages the value of the owner's home, farm, or other vested private property right or interest therein. Excepts administration and enforcement of criminal laws. Owners—including natural persons and businesses—are entitled to have full compensation determined by six-member jury trial without first having to go through administrative proceedings. This amendment becomes effective the day after voter approval.

[5] The ad hoc group worked outside the legislative process. Then Secretary of the Department of Community Affairs (DCA), Linda Loomis Shelly, led the group which was comprised of a broad contingent of interest groups. See David Powell et al., A Measured Step To Protect Property Rights, 23 FLA. ST. U. L. REV. 255, 263 n.38 (1995).

The final version of the Property Rights Act was never considered by any committee of the House. The ad hoc group presented its "compromise" bill, SB 2912, to the Senate Judiciary Committee on April 19, 1995, less than two weeks before the end of the legislative session. Fla. SB 2912 (1995); Fla. S. Judiciary Comm., tape recording of proceedings (April 19, 1995) (on file with committee) [hereinafter S. Judiciary Comm. tape]. At this committee meeting the bill was vigorously opposed by the Florida Association of Counties and the Florida League of Cities. S. Judiciary Comm. tape, supra. On April 24, 1995, one week prior to the conclusion of the legislative session, SB 2912 was heard by the Senate Committee on Community Affairs. Again the bill was opposed by the Florida Association of Counties and the Florida League of Cities. Supporters included Robert M. Rhodes and Jim Murley, then Executive Director of 1000 Friends of Florida and now Secretary of the DCA.

Representative Bert J. Harris, Jr., Rep., Lake Placid, the sponsor of the bill in the House and a property rights proponent since the 1970s, speculated that if the bill had been heard in a House committee it would have died there. Telephone interview with Rep. Bert J. Harris, Jr. (May 24, 1995) (notes on file with author) [hereinafter Harris, Interview One].

Governor Chiles described the Property Rights Act as a "reasonable" solution to a hard problem. Adam Yeomans, Property-Rights Bill Goes to Chiles, TALL. DEM., May 4, 1995, at C1. State Senator Rick Dantzler, Dem., Winter Haven, the sponsor of the Senate version of the property rights bill, is cited by Yeomans as stating that the bill "answered the cry from private-property rights without going too far." Id. Return to text.

[6] FLA. H.R. JOUR. 1050 (Reg. Sess. May 2, 1995) (111 yeas, 0 nays); FLA. S. JOUR. 698, 708 (Reg. Sess. May 3, 1995) (38 yeas, 1 nay). Return to text.

[7] There was virtually no debate in the House and only a 30-minute debate in the Senate. Fla. H.R., tape recording of proceedings (May 1-2, 1995) (on file with Clerk of the House) (floor debate on the "strike-everything" amendment to CS for HB 863); Fla. S., tape recording of proceedings (May 3, 1995) (on file with the Secretary of the Senate) (floor debate on SB 1326). Return to text.

[8] 1995, Fla. Laws ch. 95-181 (codified at FLA. STAT. ch. 70 (1995)). Return to text.

[9] FLA. STAT. § 70.001(1) (1995). Return to text.

[10] Id. § 70.51(1). Section 3 of the Act expressly states that sections 1 and 2 are separate and distinct pieces of legislation, and are not to be construed in pari materia. 1995, Fla. Laws ch. 95-181, § 3. Return to text.

[11] FLA. STAT. §§ 70.001(30), 70.51(30) (1995). Return to text.

[12] Id. Return to text.

[13] See infra notes 58-84 and accompanying text. Return to text.

[14] See infra notes 94-209 and accompanying text. Return to text.

[15] FLA. STAT. §§ 70.001(2), (3) (1995). Return to text.

[16] Takings law is concerned with governmental actions, either by regulation or by physical action, that are deemed to "take" private property. The Fifth Amendment of the United States Constitution provides that "private property [shall not] be taken for public use, without just compensation." U.S. CONST. amend. V. The Fourteenth Amendment of the United States Constitution guarantees that no individual shall be deprived of property without due process of law. Id. amend. XIV. The Florida Constitution also guarantees that the government may not take property without just compensation. FLA. CONST. art. X, § 6(a) ("No private property shall be taken except for a public purpose and with full compensation therefor paid."). In addition to the Takings Clause, the Florida Constitution declares that Floridians have "inalienable rights . . . to acquire, possess, and protect property." Id. art. I, § (2). See infra notes 131-201 and accompanying text. Return to text.

[17] FLA. STAT. § 70.51 (1995); see infra notes 35-40, 271-76, 327-414 and accompanying text. Return to text.

[18] The Wall Street Journal recently published a series of articles criticizing Florida's growth management laws. See Christina Binkley, Florida Land-Use Laws: A Solution to the Land-Use Law? It Depends on What the Problem Is, WALL ST. J., March 29, 1995, at F1; Christina Binkley, Florida Land-Use Laws: How Florida's Land-Use Law Has Failed, WALL ST. J., March 22, 1995, at F1. Representative Ken Pruitt, Rep., Port St. Lucie, a longtime proponent of property rights, called the growth management laws "a time bomb waiting to explode." Binkley, Solution to Land Use Law, supra, at F1.

Florida is among the growing number of states that have enacted comprehensive growth management laws. At last count 24 states have authorized some type of regional planning, including all of the states along the east and west coasts. See Patricia E. Salkin, Regional Planning: New Political Magnetism, 44 LAND USE L. & ZONING DIG., June 1992, at 3. Florida's Environmental Land and Water Management Act of 1972 enacts a regional system of planning designed to manage growth pressures in a coordinated and controlled manner. FLA. STAT. §§ 380.012-.10 (1995). The statute creates regional planning councils, which, among other things, prepare comprehensive regional policy plans, and serve as review agencies for developments of regional impact (DRIs), i.e., developments that may have a substantial regional effect. Id. §§ 380.021-.06. The regional plans, in turn, must be consistent with the State Comprehensive Plan and consider existing state, regional, and local plans. Id. §§ 186.021, .507, .508. See generally JOHN M. DEGROVE, LAND, GROWTH AND POLITICS (1984); Daniel W. O'Connell, Growth Management in Florida: Will State and Local Governments Get their Acts Together?, FLA. ENVTL. & URB. ISSUES, Apr. 1984, at 1; THOMAS G. PELHAM, STATE LAND USE PLANNING AND REGULATION (1979).

The growth management planning process itself remains largely a local process. The Local Growth Management Act of 1985, CODIFIED AT FLA. STAT. ch. 163, requires that local communities prepare a "scientifically based" comprehensive plan, Id. § 163.3177, which can be updated twice per year. Id. § 163.3187(1). The Department of Community Affairs, in turn, is charged with reviewing and ensuring that local comprehensive plans accord with regional plans, the state plan, and other applicable laws. Id. § 163.3187(1). All land development orders issued by local governments, such as zoning, rezoning, and issuance of permits, must be consistent with the comprehensive plan. See Id. § 163.3194; see also Board of County Comm'rs v. Snyder, 627 So. 2d 469, 475 (Fla. 1993). Return to text.

[19] Jim Murley of 1000 Friends of Florida is quoted as calling the Act "one big law firm relief act." See Binkley, Solution to Land Use Law, supra note 18, at F1.

Lawyers, though, would be advised to become well-versed in mediation and other alternative dispute resolution (ADR) techniques since there is clearly a trend to shift land use disputes away from the administrative and judicial processes toward ADR. Return to text.

[20] FLA. STAT. § 70.001(2) (1995). Return to text.

[21] See infra notes 289-93, 300-30 and accompanying text. Return to text.

[22] See infra notes 219-34 and accompanying text. Return to text.

[23] This "legitimacy" effect has been identified and discussed by leading takings and constitutional process scholars including professors Ackerman, Michelman, Ely, Sax, and Tribe. When the state appears to act in an arbitrary fashion, the legitimacy of the state is questioned. For example, when the exercise of state police power impacts one group disproportionately and the state fails to make necessary compensation, this will diminish citizens' trust in government. See generally LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW 605-07 (2d ed. 1988); BRUCE A. ACKERMAN, PRIVATE PROPERTY AND THE CONSTITUTION (1977); Frank I. Michelman, Property, Utility, and Fairness: Comments on the Ethical Foundations of "Just Compensation" Law, 80 HARV. L. REV. 1165 (1967); JOHN H. ELY, DEMOCRACY AND DISTRUST: A THEORY OF JUDICIAL REVIEW (1980); Joseph L. Sax, Takings and the Police Power, 74 YALE L.J. 36 (1964). Return to text.

[24] James Madison viewed the Takings Clause as an anti-majoritarian device that protects the rights of property owners. See THE FEDERALIST NO. 10, at 79 (James Madison) (Lester DeKoster ed., 1976) ("The most common and durable source of factions has ever been the unequal distribution of property. Those who hold as opposed to those who are without property have ever formed distinct interests in society.").

Scholars, as well, have directly and indirectly viewed takings law as a political struggle between groups. Frank Michelman views the Takings Clause as a negative restriction protecting the status quo. Frank I. Michelman, Takings, 1987, 88 COLUM. L. REV. 1600, 1625 (1988). Susan Rose-Ackerman observes that the Takings Clause is an ineffective way of equalizing political power among groups. See Susan Rose-Ackerman, Regulatory Takings: Policy Analysis and Democratic Principles, in TAKING PROPERTY AND JUST COMPENSATION: LAW AND ECONOMICS PERSPECTIVES OF THE TAKINGS ISSUE 25, 34 (Nicholas Mercuro ed., 1992). Rather, she posits that it is most effective as a way of protecting diverse individuals from bearing disproportionate costs of public policy. See id; see also infra note 243. Return to text.

[25] Under the Florida Constitution, counties and municipalities do not have to comply with general laws that require expenditure of county or municipal funds, unless the Legislature has determined that such law fulfills an important state interest and the law passes by two-thirds membership of each Chamber of the Legislature. FLA. CONST. art. VII, § 18.

The Act was passed unanimously in the House and with only one dissenting vote in the Senate. See supra note 6. Section 1 of the Act declares the importance of protecting private property owners from laws, regulations, and ordinances of the state and political entities in the state that inordinately burden, restrict, or limit private property rights, without amounting to a taking. FLA. STAT. § 70.001(1) (1995). The House Report concluded that the Act is not an unfunded mandate. See Fla. H.R. Comm. on Judiciary, CS for HB 863 (1995) Staff Analysis (May 23, 1995) (on file with comm.), see generally FLORIDA ADVISORY COUNCIL ON INTERGOVERNMENTAL RELATIONS, 1991 REPORT ON MANDATES AND MEASURES AFFECTING LOCAL GOVERNMENT FISCAL CAPACITY (1991); Nancy P. Spyke, Florida's Constitutional Mandate Restrictions, 18 NOVA L. REV. 1403 (1994); Kristin C. Rubin, Unfunded Mandates: A Continuing Source of Intergovernmental Discord, 17 FL. ST. U. L. REV. 591 (1990); see also infra notes 266, 283. Return to text.

[26] From a classical viewpoint, property is a bundle of rights, consisting mainly of possession, use, and the right to exclude and to alienate, which the owner is free to exercise in the manner that she wishes. Professor Epstein advocates an extreme version of this classical view, under which, with limited exceptions, most governmental restrictions on this principal bundle of rights would constitute a taking for which just compensation must be paid for by the government. RICHARD A. EPSTEIN, TAKINGS: PRIVATE PROPERTY AND THE POWER OF EMINENT DOMAIN 65, 177, 257-59, 297-99 (1985) [hereinafter EPSTEIN, TAKINGS]. Return to text.

[27] The Act can be viewed as a windfall to a certain class of property owners. This windfall does not favor Floridians whose property consists of home ownership but does favor owners of large undeveloped parcels—mostly timber companies, agribusinesses, small-and-medium-sized farmers and developers—who will now be entitled to compensation under the Act for government regulatory actions. See infra note 234; see generally Harold Demsetz, When Does the Rule of Liability Matter?, 1 J. LEGAL STUD. 13 (1972). This large landowner group was influential in bringing about passage of the Act. See infra notes 64-71 and accompanying text. Return to text.

[28] Taking an asset-based accounting approach using property tax valuations, the Florida Department of Revenue estimated that the value of private land ownership in Florida in 1994 was nearly half a trillion dollars and that nearly $50 billion of that was land that was vacant or substantially unimproved. See GOVERNOR'S PROP. RTS. STUDY COMM'N II, REPORT OF THE GOVERNOR'S PROPERTY RIGHTS STUDY COMMISSION II 74-75 (1994) [hereinafter 1994 PROPERTY RIGHTS REPORT]. Of course, property tax valuations tend to be lower than fair market value. Last year, the Florida Consumer Action Network, the Florida Public Interest Research Group, and the Florida Sierra Club estimated that nine of the state's largest landowners, all of which were corporations, stood to gain $28 billion if the law were passed. See Binkley, Solution to Land Use Law, supra note 18, at F1. Return to text.

[29] See infra notes 97-112 and accompanying text. Return to text.

[30] See infra note 112. Return to text.

[31] See infra note 286 and accompanying text. Return to text.

[32] See FLA. STAT. § 70.001(5)(a) (1995); see also infra notes 285-86 and accompanying text. Return to text.

[33] See FLA. STAT. § 70.001(5)(a) (1995). Return to text.

[34] Id. § 70.001(4)(a). Return to text.

[35] Id. § 70.51(4). Return to text.

[36] Id. § 70.001(4); see infra notes 279-84 and accompanying text. Return to text.

[37] FLA. STAT. § 70.51(17)(a) (1995). Return to text.

[38] Id. §§ 70.51(17)(b), (19), (21)- (22). Return to text.

[39] 1995, Fla. Laws ch. 95-181, § 1, 1651, 1652 (codified at FLA. STAT. § 70.001 (1995)). Return to text.

[40] Id. The Powell et al. article, supra note 5, and another recent article, Martin R. Dix, Richard Lee & Alicia M. Santana, Land Use and Environmental Dispute Resolution: The Special Master, 69 FLA. B.J. 63 (Nov. 1995), discuss the Florida Land Use and Environmental Dispute Resolution section of the Act in more detail. The main weakness of the dispute resolution mechanism is that there is no incentive nor is there any obligation for local governments to participate in this new dispute resolution process. Although the Act provides that the parties must agree on a special master, the Act does not state what procedure is to be followed or what penalties, if any, ensue if the parties cannot agree on a special master. See FLA. STAT. § 70.51(4) (1995). Nowhere does the Act place an absolute obligation on land use entities to use this special master procedure. Therefore, a risk-averse, rational local government would be well-advised not to participate in such a process, since the dispute resolution process markedly favors property owners.

Second, the special master procedure is a hybrid mediation-arbitration process. Id. § 70.51(19). The parties first negotiate and, then, if they fail to come to an agreement, the special master is required to make a recommendation that could have legal effect. Id. §§ 70.51(17)(b), (19), (21)-(22). Mediation techniques which are instrumental in arriving at a settlement, such as consulting privately with each party, are not likely to be used if the special master has the potential to become a trier-of-fact and a trier-of-law.

Third, the results of the special master procedure are nonbinding. See id. § 70.51(21)-(22). Even after going through the special master procedure, the land use entity and the property owner are free to reject the findings of the special master. See id. §§ 70.51(21)(c), (22). If the parties do not reach an agreement, the landowner is free to pursue other remedies including the compensation remedy under section 70.001 of the statute. See id. § 70.51(24). Thus, local governments that are happy with the conclusion of the special master procedure cannot count on preserving the result.

The Florida Growth Management Conflict Resolution Consortium has prepared model ordinances for implementing the special master procedure and is providing training for state and local governments. See FLORIDA CONFLICT RESOLUTION CONSORTIUM, MODEL PROCEDURAL GUIDELINES FOR SPECIAL MASTER PROCEEDINGS (1995) [hereinafter MODEL PROCEDURAL GUIDELINES]. Return to text.

[41] See infra notes 356-417 and accompanying text. Return to text.

[42] See infra notes 388-404 and accompanying text. Game theory can be used to predict how the Act will affect decisionmaking. It is based on microeconomic theory that examines the strategic behavior of rational, self-interested actors and how certain factors can influence behavior in negotiations. See generally DOUGLAS G. BAIRD ET AL., GAME THEORY AND THE LAW (1994). Return to text.

[43] See infra notes 356-78 and accompanying text. Return to text.

[44] See infra notes 379-404 and accompanying text. Return to text.

[45] See infra note 404 and accompanying text. Return to text.

[46] See infra notes 233-34, 418-22 and accompanying text. Return to text.

[47] See infra notes 219-66 and accompanying text. Return to text.

[48] See infra notes 239-66 and accompanying text. Return to text.

[49] See infra notes 58-93 and accompanying text. Return to text.

[50] See infra notes 255-66 and accompanying text. Return to text.

[51] See infra notes 323-30 and accompanying text. Return to text.

[52] See infra note 330 and accompanying text. Return to text.

[53] See infra notes 410-17 and accompanying text. Return to text.

[54] See infra notes 412-14 and accompanying text. Return to text.

[55] See infra notes 418-28 and accompanying text. The Department of Community Affairs has already provided guidance in the implementation of the special master procedure. The Department contracted with the Florida Growth Management Conflict Resolution Consortium to provide a set of guidelines and training programs for state and local governments. See MODEL PROCEDURAL GUIDELINES, supra note 40. I suggest that, in like fashion, the Executive Branch or the Legislature act quickly to provide guidance in the implementation of the Act's decentralized decisionmaking procedure. Return to text.

[56] J.M. Balkin, Populism and Progressivism as Constitutional Categories, Democracy and the Problem of Free Speech, 104 YALE L.J. 1935, 1946 (1995) (reviewing CASS R. SUNSTEIN, DEMOCRACY AND THE PROBLEM OF FREE SPEECH (1993)). Return to text.

[57] Telephone interview with Rep. Bert J. Harris, Jr. (May 26, 1995) (notes on file with author) [hereinafter Harris, Interview Two]. Return to text.

[58] In 1995, six other states passed property rights bills; Idaho, see HB 212, 53rd Leg., 1st Sess. (1995); Kansas, see HB 2015, 76th Leg., 1st Sess. (1995); SB 231, 54th Leg. (1995); North Dakota, see SB 2388, 54th Leg. (1995); Texas, see SB 14, 74th Sess. (1995); Wyoming, see HB 171, 53rd Leg. (1995). Between 1991 and 1994, numerous states have also passed other similar bills. Delaware, see SB 130, 136th Gen. Assembly, 1st Sess. (1991); Indiana, see HB 1646, 108th Leg., 1st Sess. (1993); Maine, see HB 847, HB 1238, 116th Leg., 2nd Sess. (1993); Missouri, see SB 558, HB 1099, 87th Leg., 2nd Sess. (1994); Tennessee, see SB 2643, 98th Gen. Assembly, 1st Sess. (1993); Utah, see HB 163, 50th Leg., 1st Sess. (1994); Utah, see HB 171, 50th Leg., 1st Sess. (1993). Return to text.

[59] Populism is a political movement identified particularly with the South and farm states. Populism reached its zenith during the election of 1891, when farmers suffered economic hardship as a result of dropping crop prices and higher costs due to escalating interest rates and high transportation costs passed on by railroads. The reforms advocated by populists were eventually assimilated into, or co-opted by, the major political parties. Thus, populism as a formal political reform movement became unnecessary. See ROBERT C. MCMATH, JR., AMERICAN POPULISM: A SOCIAL HISTORY 1877-1898 19, 44-49 (1993); see generally GENE CLANTON, POPULISM: THE HUMANE PREFERENCE IN AMERICA 1890-1900 (1991). Scholars view populism as a continuing political philosophy that manifests itself in contemporary politics, such as when Jimmy Carter, in the 1976 presidential election, had an almost solid victory in the South with the sole exception of Virginia. See ROBERT E. BOTSCH, WE SHALL NOT OVERCOME: POPULISM AND SOUTHERN BLUE-COLLAR WORKERS 3 (1980).

Populism is deeply rooted in the social and economic networks of the South and rural communities. One basic tenet of populism is a suspicion of centralized authority, whether the authority is governmental or private, such as industrial cartels or elites which co-opt governmental influence. Populists decry dependency and value individualism. Hence, for populists, the proper role of government is to protect the rights that individuals need to make a decent living. On the other hand, populists view corruption as endemic to the exercise of power. Thus, populists view government bureaucracy with a great deal of suspicion and desire reforms that will make government more accessible and responsive to commonplace people. See Balkin, supra note 56, at 1946. To achieve this end, populists seek to facilitate participation by citizens in the process of government. Id. at 1945. Return to text.

[60] Agriculture is the third largest industry in Florida, consisting of large agribusiness, mostly sugar growers, and small- to medium-sized farmers. Many of the farms in the middle of the state are owned and operated by "family" style farmers. See FLORIDA DEPARTMENT OF AGRICULTURE & CONSUMER SERVICES, AGRICULTURE FACTS 1994 3 (1994).

Agriculture has a substantial stake in the property rights movement for two reasons. First, environmental regulations can place significant restrictions on farming operations, thereby increasing operational costs. For example, if a farm is part of an endangered species habitat, regulations will restrict which areas may be farmed and how they can be farmed. Second, for small-and medium-sized farmers, the bulk of their personal wealth is in their land. The land is their savings. If land use regulations significantly influence the fair market value of a parcel, they will also affect the farmers' personal wealth.

There is a perception, not based on evidence, that growth management regulations have affected the value of farmland. One comment submitted to the 1991 Florida Land Value Survey stated that "[t]he comprehensive plan has killed transition land and most farm land sales." DAVID DENSLOW ET AL., BUREAU OF ECONOMIC AND BUSINESS RESEARCH, UNIVERSITY OF FLORIDA, THE ECONOMIC IMPACT OF LOCAL GOVERNMENT COMPREHENSIVE PLANS 51 (1994) (citing an unpublished comment to the 1991 Florida Land Value Survey). Not coincidentally, the Property Rights Act provides that an owner's existing use can be the non-speculative use of neighboring properties. FLA. STAT. § 70.001(3)(b) (1995). This "use" definition will benefit farmlands situated at the fringes of an urban area. See infra notes 240, 291. Return to text.

[61] For example, Rep. Ken Pruitt believes that land use laws are too intrusive, complex, and anti-growth. See Binkley, Solution to Land Use Law, supra note 18, at F1. Return to text.

[62] Rep. Bert J. Harris, Jr., after whom the Act was named and a leading advocate of the Act, represents an area of the state where there are many citrus farms, and is himself a citrus farmer. In 1978 he sponsored a Property Owners Protection Act, and 17 years later he sponsored the Property Rights Act in the Florida House of Representatives. Rep. Harris has been a longtime supporter of property rights and has sponsored property rights bills in the 1993 and 1994 legislative sessions as well. See Fla. HB 1437 (1993); Fla. HB 485 (1994). Rep. Ken Pruitt, a real estate professional from the rapidly growing area of Port St. Lucie, was the co-sponsor of the 1995 Act, the sponsor of the 1993 property rights bill, Fla. HB 1437 (1993), and a member of the ad hoc group which drafted the 1995 Property Rights Act. Rep. Dean Saunders, who brought the Property Rights Act to the floor of the Florida House of Representatives for a vote, was a co-sponsor of the 1994 Property Protection Act. See Fla. HB 1967 (1994). Return to text.

[63] See generally Wetherell, supra note 3. Return to text.

[64] The $3 million drive for the 1994 property rights constitutional amendment was financed largely by U.S. Sugar Corporation and other members of the Florida Legal Foundation. See Binkley, Solution to Land Use Law, supra note 18; David J. Russ, How the "Property Rights" Movement Threatens Property Values in Florida, 9 J. LAND USE & ENVTL. L. 395, 399 (1994). Return to text.

[65] These corporations held among them at least 2.1 million acres of undeveloped private land. See Russ, supra note 64, at 399. St. Joe Paper Company, U.S. Sugar Corporation, Lykes Brothers, Collier Enterprises, and A. Duda & Sons were among the most public of the corporate supporters of the property rights movement in 1994. See Mary Ellen Klas, Powerful Landowners Fuel Property Revolt, PALM BCH. POST, Mar. 11, 1994, at A1. Return to text.

[66] In 1993 the Florida Legislature attempted to pass a property rights bill but succeeded only in enacting legislation which would have created a commission to study property rights and regulatory takings. See Fla. SB 1000 (1993). This bill was vetoed by Governor Lawton Chiles on the ground that it would be the first step toward dismantling the growth management laws. See Margaret Leonard, Effort To Pass Property Law in Florida Is Still Brewing, TALL. DEM., Jan. 3, 1993, at A7. Return to text.

[67] For example, large portions of farming areas in central Florida are also designated wetlands. Farmers have complained about being forced to reduce the acreage that they cultivate because of wetland regulations or because their land is a habitat to an endangered species. Mickie Valente, Big Business Big Winner in "Contract," TAMPA TRIB., Mar. 25, 1995, at Business and Finance 1; Jeff Klinkenberg, Showdown in the Everglades, ST. PETE. TIMES, Sept. 27, 1992, at F1. Return to text.

[68] Representative Harris provided one example of the type of wrong that the Property Rights Act was intended to correct. He cited the situation of one of his constituents, an elderly lady who had purchased a lot 20 years ago with the intent of living there in a mobile home. When she was ready to do this, land use regulations prohibited her from doing so. See Harris, Interview One, supra note 5. Return to text.

[69] Consider these tales of travail recounted in Forbes:

[The] Horvitz family has fought Florida's land planning bureaucracy for ten years. Their goal: to build a luxury residential community and marina on their 1,600 acres of water-front property, considered by many to be the best big coastal site left in southern Florida. Their development outfit, Hollywood Inc., spent at least $2 million on plans, paperwork and lawyers, and appeared before an assortment of state, city and county agencies and boards. Still the red tape multiplied. The Horvitzes filed thick piles of forms, applications and memoranda. The upshot: The Horvitzes won permission to build apartments home [sic] and warehouses on 300 acres, but no marina. In exchange, they had to agree to sell the remaining 1,300 acres to the state and Broward Country [sic] as part of an effort to preserve a mangrove swamp.

David T. McWilliams . . . spent three years wringing approval from half a dozen local, state and federal agencies to buil[d] a small subdivision on 70 acres near Cape Canaveral. After McWilliams started construction on six houses and 15 condos, the U.S. Army Corps of Engineers abruptly slapped him with a cease-and-desist order and stopped construction cold for six months. Only when McWilliams agreed to plant cordgrass and mangroves along 2 miles of nearby waterfront (at a cost of more than $30,000) did the Corps allow him to resume work.

Thanks to three gopher tortoise sightings on a 4,800-acre planned development north of Tampa, the state's Fresh Water Fish & Game Commission recently ordered Shimberg Cross Co. to cede 600 acres of its project for a preserve. The small land turtle, which is not an endangered species, has prompted similar concessions on more than one large project, including a luxury hotel site in Fort Lauderdale.

[70] To some extent, big money interests sought to exploit this populist fervor. The Florida Farm Bureau general counsel commented that the property rights movement had to offset the prejudice against industry and exploit stories about the "little guy." See Klas, supra note 65, at 22. Return to text.

[71] Interview with Carol Gregg, Legis. Analyst, H.R Judiciary Comm. (May 25, 1995) (notes on file with author). Return to text.

[72] See Democrats' Dominance Drops, ORLANDO SENT., June 19, 1995, at B1. Return to text.

[73] Fla. Exec. Order No. 95-74 (Feb. 27, 1995). Return to text.

[74] Governor Lawton Chiles, Inaugural Speech (Jan. 3, 1995). Return to text.

[75] Fla. Exec. Order No. 95-74 (Feb. 27, 1995). Return to text.

[76] Id. at 1. Return to text.

[77] Id. Return to text.

[78] PHILIP K. HOWARD, THE DEATH OF COMMON SENSE (1994). Return to text.

[79] Even Professor Cass Sunstein, a well-known and widely respected constitutional scholar identified with civic republicanism and the legal process movement, acknowledged the validity of the general theme of Howard's book. See Cass R. Sunstein, Land of 4,000 Unreadable Rules, N.Y. TIMES, Feb. 12, 1995, at 12 (reviewing THE DEATH OF COMMON SENSE). This book made the reading list of the President of the United States, the Governor of Florida, and every agency head of Florida, and, in general, swept the country. In remarks to the Florida Legislature, President William J. Clinton noted a common interest in The Death of Common Sense and in regulatory reforms designed to make government regulations simpler and more "common sensible." FLA. S. JOUR. 259-260 (Reg. Sess. March 30, 1995). Governor Chiles gave The Death of Common Sense to every agency head and commended each to read it and to be responsive to the concerns expressed in the book. Scott Eyman, The Death of Common Sense, PALM BCH. POST, Mar. 8, 1995, at D1. Return to text.

[80] HOWARD, supra note 78, at 173 ("It is no coincidence that Americans feel disconnected from government: The rigid rules shut out our point of view. Americans feel powerless because we are not given a choice: Modern law does not allow us . . . ."). Return to text.

[81] Mr. Howard states that new housing subdivisions have an empty, open look because 50 years ago traffic engineers wrote a standard code requiring streets to be 50 feet wide, about 50% wider than streets a few decades earlier, since that was the width necessary to allow two fire engines going in opposite directions to pass each other at 50 miles per hour. HOWARD, supra note 78, at 5. Another example Howard cites is Mother Theresa's abandoned attempt to open a mission for homeless men in of New York City. Mother Theresa's order was frustrated because the city offered to sell the order an abandoned building for one dollar, as the site of the new mission, but then required the installation of a $100,000 elevator, as required by the city's building code, which the order could not afford. Id. at 1-4. Return to text.

[82] Id., at 173. Return to text.

[83] See infra notes 235-38 and accompanying text. As part of this regulatory reform, the 1995 Florida Legislature enacted other far-reaching reforms of the ways that agencies exercise regulatory power. Governor Chiles vetoed a bill which would have amended the Administrative Procedures Act. See Fla. CS for SB 536 (1995). Although Governor Chiles was in agreement with the overall purpose of the reforms to simplify rulemaking, in his view some of the proposed changes would have burdened agency resources and led to additional administrative hurdles and burdens. See Letters from Governor Chiles to Sandra B. Mortham, Sec'y, Dep't of State, and James A. Scott, Senate Pres. (July 12, 1995) (on file with author). Among other things, this legislation would have required agencies to consider the economic cost of regulations, choose the method with the least economic impact, and bear the burden of proof regarding the validity of any new rule the agency promulgated. Return to text.

[84] The executive order creating the task force specified that it was to be made up of four private property owners, one economist, two local government officials, four representatives of environmental organizations, the Secretary of the Department of Community Affairs, the Secretary of the Department of Environmental Protection, a representative from a water management district, as well as members of the House and Senate. The 1994 Property Rights Task Force was chaired by a representative of the Florida Bar. Fla. Exec. Order No. 93-354, § 2 (December 29, 1994). Return to text.

[85] 1994 PROPERTY RIGHTS REPORT, supra note 28. Return to text.

[86] The 1994 Property Rights Report contains proposed legislation. Id. at 3-31. Return to text.

[87] Id. at 5-8. The 1975 Property Rights Task Force also recommended compensation for "any regulation that unduly diminishes the value of property, even though it does not constitute an unconstitutional taking without compensation." 1975 PROPERTY RIGHTS REPORT, supra note 3, at 12. Return to text.

[88] 1994 PROPERTY RIGHTS REPORT, supra note 28, at 1-2. Return to text.

[89] According to the 1994 Property Rights Report, even environmentalists joined the charge. Bob Wilson (an environmentalist on the 1994 Task Force) was characterized as advocating "almost entirely the . . . position of property owners." Id. at 58. Return to text.

[90] Fla. SB 1326 (1995); Fla. SB 2912 (1995); Fla. SB 1868 (1995); Fla. HB 1381 (1995); Fla. HJR 1847 (1995); Fla. SJR 218 (1995); Fla. HB 863 (1995). Return to text.

[91] See supra note 5. Return to text.

[92] Telephone interview with Daniel Stengle, General Counsel, Dept. of Comm'y Aff., (June 15, 1995) (notes on file with author); interview with Carol Gregg, H. Judiciary Comm., Legis. Analyst (May 25, 1995) (notes on file with author). Return to text.

[93] See supra notes 6-7 and accompanying text. Return to text.

[94] 1994 PROPERTY RIGHTS REPORT, supra note 28, at 57. Return to text.

[95] HOWARD, supra note 78, at 108. Return to text.

[96] Philip Emmer, a Gainesville developer for more than three decades, describes his experience with land use and environmental officials. Binkley, Solution to Land Use Law, supra note 18, at F1. Return to text.

[97] The foremost takings cases have all taken many years to wind their way through the court and administrative system. The leading case in Florida, Graham v. Estuary Properties, Inc., 399 So. 2d. 1374 (Fla. 1981), cert. denied, 454 U.S. 1083 (1981), took six years to reach the Florida Supreme Court. Lucas v. South Carolina Coastal Council, 112 S. Ct. 2886 (1992), the much acclaimed, recent "pro-property owners" case, took five years to reach the United States Supreme Court. The legal fees incurred exceeded half a million dollars. LAND USE L. REP. 117 (July 28, 1993). When the case was remanded to the lower court for a determination of state law issues, Mr. Lucas decided to forego further litigation and settled with the state for approximately $1.5 million. Id. Shortly thereafter, Mr. Lucas founded a nonprofit "property rights" group. See Brigit Schutte, Legal Victory Heats Up the Dispute, TALL. DEM., Jan. 3, 1994, at 7A. Two other recent noted circuit court cases, Florida Rock Indus., Inc. v. United States, 18 F.3d 1560 (Fed. Cir. 1994), cert. denied, 115 S. Ct. 898 (1995), and Loveladies Harbor, Inc. v. United States, 28 F.3d 1171 (Fed. Cir. 1994), have already made several rounds between the district and circuit courts. Florida Rock Industries has been in litigation for 10 years and has not yet been resolved. Return to text.

[98] Accord S. 239, 104th Cong., 1st Sess., § 2(4) (1994) (stating in preamble to the Private Property Owners Bill of Rights that "Private property owners are being forced by Federal Policy [sic] to resort to extensive, lengthy and expensive litigation to protect certain basic civil rights guaranteed by the constitution"). Return to text.

[99] See Penn Central Transp. Co. v. City of New York, 438 U.S. 104 (1978); Williamson County Regional Planning Comm'n v. Hamilton Bank of Johnson City, 473 U.S. 172, 193 (1985). Return to text.

[100] See Alexander v. Town of Jupiter, 640 So. 2d 79 (Fla. 4th DCA 1994), appeal dismissed, 648 So. 2d 725 (Fla. 1994); J.T. Glisson v. Alachua County, 558 So. 2d 1030 (Fla. 1st DCA 1990), rev. denied, 570 So. 2d 1304 (1990). Return to text.

[101] One commentator has called the ripeness requirement "the most important legal principle in land use litigation." Gregory Overstreet, The Ripeness Doctrine of the Taking Clause: A Survey of Decisions Showing Just How Far Federal Courts Will Go To Avoid Adjudicating Land Use Cases, 10 J. LAND USE & ENVTL. L. 91, 91 (1994); see also Brian W. Blaesser, Closing the Federal Courthouse Door on Property Owners: The Ripeness and Abstention Doctrines in Section 1983 Land Use Cases, 2 HOFSTRA PROP. L.J. 73, 75 (1988) ("In particular, the federal courts have applied the doctrines of ripeness and abstention to either dismiss or stay constitutional challenges to land use decisions, in effect, leaving the federal courthouse door only slightly ajar for land use cases which involve only the most egregious examples of arbitrary action by local governments."). Return to text.

[102] Courts cannot review a local forum's decisions for a takings violation until it is clear that an adequate remedy has been denied. Only when the local decisionmaking entity has made a final decision can it be determined just how far the regulatory action has gone to hinder a property right. A court will not review another authority's decision until the petitioner has had her case exhaustively reviewed at that level and the governmental agency has had an opportunity to redress the petitioner's concerns or adjust or modify its decision. See Williamson County, 473 U.S. at 193 ("[T]he finality requirement is concerned with whether the initial decisionmaker has arrived at a definitive position on the issue that inflicts an actual, concrete injury."); MacDonald, Sommer & Frates v. County of Yolo, 477 U.S. 340, 351 (1986) (finding appellant had not received a "final, definitive position regarding how it will apply the regulations at issue"); San Diego Gas & Elec. Co. v. San Diego, 450 U.S. 621, 622 (1981) (case dismissed because California Court of Appeal did "not decide whether any taking, in fact, occurred;" therefore, the case was not "final"); Agins v. City of Tiburon, 447 U.S. 255 (1980) (holding that appellants failed to apply for alternative development on property; therefore case was not properly before the court); Villas of Lake Jackson, Ltd. v. Leon County, 796 F. Supp. 1477 (N.D. Fla. 1992) (requiring exhaustion of all remedies with respect to takings claims); see also Executive 100, Inc. v. Martin County, 922 F.2d 1536 (11th Cir. 1991), cert. denied, 112 S. Ct. 55 (1991) (requiring exhaustion of all administrative remedies, including inverse condemnation proceedings). Return to text.

[103] The state compensation requirement responds to the question of whether there has been a denial of just compensation. It requires a petitioner to seek compensation available under state, local, and administrative processes and to have been denied relief under such processes. See Williamson County, 473 U.S. at 194-95 ("[B]ecause the Fifth Amendment proscribes takings without just compensation, no constitutional violation occurs until just compensation has been denied . . . . If the government has provided an adequate process for obtaining compensation and if resort to that process 'yield[s] just compensation,' then the property owner 'has no claim against the Government' for a taking.") (citing Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1013, 1018 n.21 (1984)). However, such recourse must be an adequate process for securing compensation. In Williamson County, the Supreme Court held that the availability of an inverse condemnation claim in state court was an "adequate" compensation remedy that the petitioner should have exhausted. Id. at 197. Return to text.

[104] Only a facial challenge, that is, a challenge that the regulation itself is unconstitutional, does not have to comply with both prongs of the ripeness requirement. Village of Euclid v. Ambler Realty, Co., 272 U.S. 365 (1926); but see MacDonald, 477 U.S. at 348 (stating that in a facial challenge, the court may require the petitioner to exhaust local process). As the United States Supreme Court has noted, the plaintiff "face[s] an uphill battle" in a facial challenge. See Keystone Bituminous Coal Ass'n v. DeBenedictis, 480 U.S. 470, 495 (1987). Return to text.

[105] See Williamson County 473 U.S. at 194. The Lucas decision, however, showed some flexibility with respect to the final decision requirement. In Lucas there was a question whether Lucas should have applied for a permit under a special procedure established by the coastal commission after Lucas had commenced his suit. The Court found that doing so would have been "pointless," rejecting the state's ripeness defense. Lucas v. South Carolina Costal Council, 112 S. Ct. 2886, 2891 n.3 (1992). This was the first time that the Court applied the "futility" exception, which provides that a petitioner need not exhaust all local remedies if to do so would be futile. Id. at 2891.

Professor Roberts argues that Lucas signals to federal lower courts that they may treat the ripeness requirement as "prudential," rather than as a matter of subject matter jurisdiction. See Thomas Roberts, Ripeness After Lucas, in AFTER LUCAS: LAND USE REGULATION AND THE TAKING OF PROPERTY WITHOUT COMPENSATION 23 (David Callies ed., 1993). In Reahard v. Lee County, 968 F.2d 1131, 1133 (11th Cir. 1992), cert. denied, 115 S. Ct. 1693 (1995), a case decided after Lucas, the Eleventh Circuit continued to regard ripeness as a question of subject matter jurisdiction. Return to text.

[106] Penn Central. Transp. Co. v. City of New York, 438 U.S. 104, 137 (1978) 438 U.S. at 137 (takings claim rejected in part because petitioner had "not sought approval for the construction of a smaller structure" than the 50-story office building to be built on top of Penn Central Station); Agins, 447 U.S. at 255 (challenge to zoning ordinance that permitted up to five single family dwellings to be built on five-acre tracts dismissed because petitioner did not submit development plans to local officials, who would have determined what petitioner would have been allowed to build). Return to text.

[107] Accord Roberts, supra note 105, at 22. Return to text.

[108] See Williamson County, 473 U.S. 199-200. In Williamson County the developer obtained initial approval for a subdivision of 736 units in a single-family residential zone. Id. at 177. However, the planning commission subsequently amended the zoning ordinance to permit less intensive use, known as "down-zoning", and denied subdivision approval. Id. The Court ruled that the developer had not met the finality requirement because he did not seek a variance, which could have overridden the planning commission's rejection. Id. at 186. Return to text.

[109] See MacDonald, Sommer & Frates v. County of Yolo, 477 U.S. 340, 347 (1986). In this case, the planning commission denied a subdivision proposal for 159 units, and petitioner argued that the rejection effectively restricted use of the land to only agricultural activities, a low intensity use. The Court rejected this argument and found as follows:

Here plaintiff applied for approval of a particular and relatively intensive residential development and the application was denied. The denial of that particular plan cannot be equated with a refusal to permit any development, and plaintiff concedes that the property is zoned for residential purposes in the County general plan and zoning ordinance. Land use planning is not an all-or-nothing proposition. A governmental entity is not required to permit a landowner to develop property to [the] full extent he might desire or be charged with an unconstitutional taking of the property. Here, as in Agins, the refusal of the defendants to permit the intensive development desired by the landowner does not preclude less intensive, but still valuable development. Accordingly, the complaint fails to state a cause of action.

[110] See MacDonald, 477 U.S. at 350 ("The local agencies charged with administering regulations governing property development are singularly flexible institutions; what they take with one hand they may give back with the other."). A land use entity's ability to postpone a final determination has prevented many a property owner from obtaining a fair hearing within a reasonable time frame. In one extreme federal case, the land use agency took six years to make a final determination. In that case, the court required the petitioner to wait until the agency made a final determination. See Norco Construction, Inc. v. King County, 801 F.2d 1143, 1145 (9th Cir. 1986). When a governmental entity takes an inordinate amount of time in making a final determination, some courts have indicated their willingness to apply the futility exception, but few courts have applied such exception. See, e.g., Kinzli v. City of Santa Cruz, 818 F.2d 1449, 1454 n.5 (9th Cir. 1987), cert. denied, 484 U.S. 1043 (1988). Return to text.

[111] Accord Overstreet, supra note 101, at 124 ("[F]ederal courts dislike adjudicating land use cases and have applied the ripeness doctrine harshly in an effort to close the federal court house doors to land use taking cases."). But see Roberts, supra note 105. Return to text.

[112] Blaesser, supra note 101, at 90-136. Return to text.

[113] Four hundred and fifty-eight local agencies had to prepare a comprehensive plan, and by 1991 all had completed their plan. HOUSE COMM. ON COMM'Y AFF., 1995 FLORIDA LOCAL GOVERNMENT FORMATION MANUAL I-4 (4th ed. 1995) There are 11 regional planning councils in Florida, five water management districts, and 1,040 special districts of which 92 are not active. HOUSE COMM. ON NAT. RES., PROGRAM REVIEW OF SPECIAL DISTRICTS 1, 21 (Nov. 1994). Return to text.

[114] See FLA. STAT. §§ 163.3204, 186.509, 187.201(26) (1995). Return to text.

[115] A recent article describes environmental and land use permitting as follows:

Under Florida's current environmental regulatory framework, a person engaging in water or land altering activity is likely required to secure separate permits from the Department of Environmental Protection (DEP), a Water Management District (WMD), and local government. Wetland impacts are regulated by these state, regional, and local entities through wetland resource, surface water management, sovereign submerged lands, coastal construction, mangrove alteration, and in some cases, city or county permitting programs. At the federal level, there is also a requirement to obtain a permit from the United States Army Corps of Engineers ("Corps") for the same development activities that impact wetlands.

[116] See Richard A. Epstein, Property as a Fundamental Civil Right, 29 CAL. WESTERN L. REV. 187 (1992). Return to text.

[117] In spite of successful permitting at the local level, a state agency can veto a project, even if the project is much desired by local government. For example, the Southwood development project in Leon County, Florida, sponsored by the St. Joe Paper Co., is an ambitious plan to transform 6,000 acres in economically depressed southeast Leon County to a development which will eventually employ 2,000 people and house 30,000 more in middle-class housing. Planning on this project began in March 1994 and was negotiated by the City of Tallahassee, Leon County, and St. Joe Paper Co. The plan has been submitted twice to the Department of Community Affairs and twice it has been rejected. The local officials "thought [they] had answered all [the State's] questions," but the Department of Community Affairs denied approval because the project does not contain enough affordable housing and would permit St. Joe Paper Co. to harvest pine trees. See Savannah Blackwell, State Halts Growth Plan: The DCA Ruling Puts the Brakes on the Southwood Development, TALL. DEM., June 8, 1995, at C2. The issue is now being litigated. Interview with Richard Geshwiller, Chief of Planning, City of Tallahassee-Leon County Planning Agency (September 27, 1995) (notes on file with author). Return to text.

[118] See generally, RICHARD F. BABCOCK & CHARLES SIEMON, THE ZONING GAME REVISITED (1985); RICHARD F. BABCOCK, THE ZONING GAME (1966). Return to text.

[119] Many examples can be cited. In spring 1994, the Tallahassee-Leon County Planning Commission considered a subdivision application for a mobile home development, which was to be located at the fringe of an older, established community of single-family homes on the south side of Tallahassee. See Savanah Blackwell, Neighborhood Up in Arms over Comp Plan, Trailers, TALL. DEM., Jan 10, 1995, at B1, B3. The lots would be owned by the mobile home occupant and the plan provided for two-car parking for each lot. Id. at B1. The community adjoining the proposed development vigorously opposed the subdivision and attacked the development at lengthy and raucous public hearings. Id. The petitioner, the developer of the mobile home park subdivision, had complied with all zoning code and comprehensive plan requirements and had exceeded them as requested by the city planning officials. Id. at B3. Nonetheless, during the second public hearing, in the din of the upset neighbors, the planning commission denied approval. Penelope M. Carrington, Board Rejects Trailer Park Plan, TALL. DEM., Jan 19, 1995, at D1, D2. The Tallahassee City Commission, which heard the appeal, stood behind the planning commission's decision, and authorized the city to purchase the parcel in question. Savanah Blackwell, Residents Defeat Mobile Homes, TALL. DEM., March 23, 1995, at 6B; see generally BABCOCK & SIEMON, supra note 118, at 5, 11-36, 183-206 (describing some land use cases as "hysterical" and reminding attorneys to "[n]ever ignore the political climate when trying a zoning case"). Return to text.

[120] 627 So. 2d 469 (Fla. 1993). Return to text.

[121] 589 So. 2d 1337 (Fla. 3d DCA 1991). Return to text.

[122] Snyder holds that a site-specific rezoning is a quasi-judicial proceeding, and upon judicial review the local governing body's decision is subject to strict scrutiny for compliance with the local comprehensive plan. 627 So. 2d at 473-75. Additionally, the local government's decision must be supported by "substantial competent evidence." Id. Moreover, Snyder is not limited to site-specific rezoning. Snyder has been applied to site plan approvals, see Park of Commerce Ass'n v. City of Delray Beach, 636 So. 2d 12, 15 (Fla. 1994), and amendments to comprehensive plans, see Florida Inst. of Technology, Inc. v. Martin County, 641 So. 2d 898, 899-900 (Fla. 4th DCA. 1994). Quasi-judicial proceedings are more formal than quasi-legislative proceedings: ex parte communications are not allowed, Jennings, 589 So. 2d at 1341, witnesses may be cross-examined, expert witnesses may testify, transcripts can be made available, and opposing factions must receive copies of all notices and be given an opportunity to testify. See generally, Mark P. Barnebey & Bonnie T. Polk, Quasi-Judicial Land Use Hearings: Does Your Evidence Pass Muster?, FLA. B.J. 42-47 (March 1995) (describing cases therein); see also Section 28 Partnership, Ltd. v. Martin County, 642 So. 2d 609 (Fla. 4th DCA 1994) (analyzing the distinction between a quasi-legislative and a quasi-judicial zoning decision). Jennings has been somewhat modified by legislative fiat, which has relaxed the formality of quasi-judicial proceedings by permitting local officials to communicate with citizens if the local government adopts a resolution permitting such communications. 1995, Fla. Law ch. 95-352 (codified at FLA. STAT. § 286.0115 (1995)).

More generally, the need to be able to determine whether local politics has had an undue influence on local land use decisionmaking has caused courts to emphasize the need for local decisions to be made "in accordance" or "consistent with" the comprehensive plan. Snyder, 627 So. 2d at 476; Machado v. Musgrove, 519 So. 2d 629 (Fla. 3d DCA 1987); Fasano v. Board of County Comm'rs, 507 P.2d 23 (Ore. 1973) (EN BANC). Return to text.

[123] See MacDonald, Sommer & Frates v. County of Yolo, 477 U.S. 340, 350 (1986) ("[local agencies] are singularly flexible institutions"). Return to text.

[124] Snyder, 627 So. 2d at 475. Return to text.

[125] Id. In a quasi-judicial matter, if the applicant shows that a land use change is consistent with the comprehensive plan, the burden of proof shifts to the local government to show that maintaining the existing classification accomplishes a legitimate governmental purpose. Id. at 476. The Snyder holding clearly bothered the 1994 Property Rights Task Force. See 1994 PROPERTY RIGHTS REPORT, supra note 28, at 58-63, and probably influenced its recommendation to adopt legislation substantially similar to the Property Rights Act. Return to text.

[126] See generally Carol M. Rose, Planning and Dealing: Piecemeal Land Controls as a Problem of Local Legitimacy, 71 CAL. L. REV. 837 (1983). Return to text.

[127] To deter neighbors from taking an adversary position, some developers have filed SLAPP suits (strategic lawsuits against public participation), usually alleging tortious interference with business relations or defamation. See John C. Barker, Common Law and Statutory Solutions to the Problem of SLAPPs, 26 LOY. L.A. L. REV. 395 (1993). Alternatively, sophisticated developers include in their planning strategy public relations campaigns to win local support. Dwight H. Merriam et al., Grass Roots Lobbying, in ALI-ABA LAND USE INSTITUTE, PLANNING REGULATION, LITIGATION, EMINENT DOMAIN AND COMPENSATION 769 (1994). Return to text.

[128] From an efficiency standpoint, government regulations should allocate to developers only spill-over costs or externalities caused by new development that otherwise would be shifted to nonconsenting third parties. See Ronald H. Coase, The Problem of Social Cost, 3 J. LAW & ECON. 1 (1960); Guido Calabresi & A. Douglas Melamed, Property Rules, Liability Rules, and Inalienability: One View of the Cathedral, 85 HARV. L. REV. 1089 (1972). For example, local officials may exact as terms and conditions of a building permit, costs that properly should be financed by the entire community. Developer Philip Emmer cites as an example his having been required by city officials to build a wall around a subdivision, the walls having been demanded by a neighborhood group. He argues that if the city had to pay for the wall, it would have built a much less expensive one. See Binkley, Solution to Land Use Law, supra note 18, at F1. Return to text.

[129] See Robert C. Ellickson, Alternatives to Zoning: Covenants, Nuisance Rules, and Fines as Land Use Controls, 40 U. CHI. L. REV. 681, 701-02 (1973):

The pervasiveness of special influence is inherent in the zoning system. Judicial insistence on uniform standards for decision, a basic way of preventing favoritism in government, is not possible in the case of zoning; the name itself suggests a system of nonuniform regulation. Since the courts cannot easily distinguish good planning from bad, judicial checks on unfair variations in land use restrictions have been minimal. Studies have documented the lawlessness of zoning variance decisions in most communities. Many courts have stopped trying to police local zoning and consistently sustain the local government's action under the "presumption of validity" given to zoning provisions.

[130] I have borrowed this caption from Carol M. Rose, Mahon Reconstructed: Why the Takings Issue Is Still a Muddle, 57 S. CAL. L. REV. 561 (1984). Return to text.

[131] U.S. CONST. amend. V & XIV; FLA. CONST. art. X, § 6(2) & art. I, § (2). Return to text.

[132] The 1976 Property Rights Report committee contacted practitioners and academic and government officials practicing in this area in the State of Florida and concluded that "the [eminent domain] system appears to be working well and appears to be fundamentally fair." 1976 PROPERTY RIGHTS REPORT, supra note 3, at 68. Return to text.

[133] These cases are commonly referred to as regulatory takings or inverse condemnation cases. Return to text.

[134] 260 U.S. 393 (1922). Return to text.

[135] Id. at 415. Return to text.

[136] Id. In addition, scholars have struggled to reconcile the "too far" standard of Mahon with the Court's earlier pronouncement in Mugler v. Kansas, 123 U.S. 623 (1887), in which the Court found that a government regulation that forced the defendant to close his brewery was a valid exercise of the police power and did not amount to a taking. This holding was based on the noxious use exception, which provides that a regulation of land use is not a taking if it is to control some "evil" or "noxious" use. Mugler, 123 U.S. at 640; see generally FRED P. BOSSELMAN ET AL., THE TAKINGS ISSUE (1973); William B. Stoebuck, Police Power, Takings, and Due Process, 37 WASH. & LEE L. REV. 1057 (1980). Return to text.

[137] Keystone Bituminous Coal Ass'n v. DeBenedictis, 480 U.S. 470, 512 (1987) (stating that purpose of Fifth Amendment is to prevent "the public from loading upon one individual more than his just share of the burdens of government, and [it] says that when he surrenders to the public something more and different from that which is exacted from other members of the public, a full and just equivalent shall be returned to him")(quoting Monongahela Navigation Co. v. United States, 148 U.S. 312, 325 (1893)); Armstrong v. United States, 364 U.S. 40, 49 (1960) ("The Fifth Amendment's guarantee that private property shall not be taken for a public use without just compensation was designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole."). Return to text.

[138] Mahon, 260 U.S. at 417 (Brandeis, J., dissenting); see Sax, Takings & Police Powers, supra note 23, at 39 ("Under this . . . theory then the constitutional issue turns upon whether the government has asserted a proprietary interest for itself in the affected property.") Return to text.

[139] Penn Central Transp. Co. v. City of New York, 438 U.S. 104, 124 (1978). Return to text.

[140] 112 S. Ct. 2886 (1992). Return to text.

[141] The Court, speaking through Justice Scalia, recharacterizes the police power noxious use cases, Hadacheck v. Sebastian, 239 U.S. 394 (1915), Miller v. Schoene, 276 U.S. 272 (1928), and Goldblatt v. Hempstead, 369 U.S. 590 (1962), as "simply the progenitor[s] of our more contemporary statements that 'land-use regulation does not effect a taking if it substantially advance[s] legitimate state interests.' " Lucas, 112 S. Ct. at 2897. The approach under Lucas protects expectations based on traditional common law notions of property rights. See infra notes 185-190. Similarly, Justice Holmes emphasized in Mahon that the Kohler Act went too far because it "purports to abolish what is recognized in Pennsylvania as an estate in land." 260 U.S. at 414. Return to text.

[142] Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982); see Yee v. City of Escondido, 112 S. Ct. 1522 (1992) (rejecting the lower court's finding that the combination of rent control and landlord-tenant statutes conceded to renters virtual physical possession of mobile home lots). Return to text.

[143] Lucas, 112 S. Ct. at 2893. Return to text.

[144] See Graham v. Estuary Properties, Inc., 399 So.2d 1374, 1380 (1981); Newman v. Carson, 280 So. 2d 426 (Fla. 1973); State Plant Bd. v. Smith, 110 So. 2d 401 (Fla. 1959); Varholy v. Sweat, 15 So. 2d 267 (Fla. 1943). Return to text.

[145] Graham, 399 So. 2d at 1380. Return to text.

[146] Estuary Properties, Inc. v. Askew, 381 So. 2d 1126, 1138 (Fla. 1979) ("[W]hile government clearly has the right to expropriate private property for purposes beneficial to the general public, it cannot require a single property owner to bear the cost of such general benefits. This principle, which is the essence of the 'property clauses' of the United States and Florida Constitutions, commands that the cost of public benefits be borne by the public.") (citing State Road Dep't v. Tharp, 1 So. 2d 868 (Fla. 1941)). Return to text.

[147] Storer Cable T.V. of Fla., Inc. v. Summerwinds Apartments Ass'n, Ltd., 493 So. 2d 417 (Fla. 1986) (Under article X, section 6 and article I, sections 2 and 9 of the Florida Constitution, as well as the Fifth and Fourteenth amendments of the United States Constitution, the Florida supreme court found that a statute permitting cable companies to install cable equipment on property that a tenant did not specifically have the right to use was a taking because it resulted in a permanent, physical invasion.) Return to text.

[148] Askew, 381 So. 2d at 1137. Return to text.

[149] Such uncertainty and inconsistency is increased by the way in which courts apply the test—often blending due process and takings analysis and, in effect, balancing the public purpose served by the regulation against the economic harm imposed on the individual landowner. E.g., Graham, 399 So. 2d at 1381 (finding that the public interest in preserving the integrity of the environment "promotes the welfare of the public, prevents a public harm, and has not been arbitrarily applied"); see generally Glen E. Summers, Private Property Rights: Toward a Takings Jurisprudence Uncorrupted by Substantive Due Process, 142 U. PA. L. REV. 837, 862-877 (1993) (identifying this blended approach and deploring "balancing" as clearly an inadequate protection of property rights); Stoebuck, supra note 136, at 1065 ("Balancing is a false taking test . . . . [It] is also too dangerous to function as a test for a police power taking."). Return to text.

[150] 438 U.S. at 124. Return to text.

[151] Id. Return to text.

[152] In the leading modern regulatory takings case in Florida, Graham, 399 So. 2d at 1374, the Florida Supreme Court reformulated the Penn Central balancing test into six non-exhaustive factors:

1. Whether there is a physical invasion of the property;

2. The degree to which there is a diminution in value of the property, or [] whether the regulation precludes all economically reasonable use of the property;

3. Whether the regulation confers a public benefit or prevents a public harm;

4. Whether the regulation promotes the health, safety, welfare, or morals of the public;

5. Whether the regulation is arbitrarily and capriciously applied; [and]

6. The extent to which the regulation curtails investment-backed expectations.

Reahard is a decision involving permitting of a subdivision on a 40-acre piece of waterfront property, once part of a larger parcel of 540 acres purchased 48 years earlier. The court listed a total of eight factors as relevant to the inquiry of whether the landowner has been deprived of all or substantially all economically viable use of the property:

(1)the history of the property—when was it purchased? How much land was purchased? Where was the land located? What was the nature of title? What was the composition of the land and how was it initially used?;

(2)the history of development—what was built on the property and by whom? How was it subdivided and to whom was it sold? What plats were filed? What roads were dedicated?;

(3)the history of zoning and regulation—how and when was the land classified? How was use proscribed? What changes in classifications occurred?;

(4)how did development change when title passed?;

(5)what is the present nature and extent of the property?;

(6)what were the reasonable expectations of the landowner under state common law?;

(7)what were the reasonable expectations of the neighboring landowners under state common law?; and

(8)perhaps most importantly, what was the diminution in the investment-backed expectations of the landowner, if any, after passage of the regulation?

In Florida Rock Industries, Inc., the court listed other factors to be considered in addition to the loss of economic use to the property owner as a result of the regulation imposed:

[A]re there direct compensating benefits accruing to the property, and others similarly situated, flowing from the regulatory environment? Or are benefits, if any, general and widely shared through the community and the society, while the costs are focused on a few? Are alternative permitted activities economically realistic in light of the setting and circumstances, and are they realistically available? In short, has the Government acted in a responsible way, limiting the constraints on property ownership to those necessary to achieve the public purpose, and not allocating to some number of individuals, less than all, a burden that should be borne by all?

[153] See Lucas v. South Carolina Coastal Council, 112 S. Ct. 2886, 2893 (1992). Return to text.

[154] See DAVID L. CALLIES ET AL., CASES AND MATERIALS ON LAND USE 283 (2d ed. 1994). Return to text.

[155] See Lucas, 112 S. Ct. at 2893; See also Agins v. City of Tiburon, 447 U.S. 255, 260 (1980). Return to text.

[156] Id. Return to text.

[157] The deferential standard found in Berman v. Parker, 348 U.S. 26 (1954), an eminent domain takings case, is often applied to this prong of the takings analysis. The Berman standard has been characterized as a virtual abandonment of judicial review. In Berman the Court stated:

We do not sit to determine whether a particular housing project is or is not desirable. The concept of the public welfare is broad and inclusive . . . . The values it represents are spiritual as well as physical, aesthetic as well as monetary. It is within the power of the legislature to determine that the community should be beautiful as well as healthy, spacious as well as clean, well-balanced as well as carefully patrolled. In the present case, the Congress and its authorized agencies have made determinations that take into account a wide variety of values. It is not for us to reappraise them.

The Court's frustration with virtual abandonment of the governmental purpose requirement is evidenced in Lucas, where it voiced skepticism at the Legislature's finding that it was necessary to prohibit construction along the area where Lucas had applied for a building permit. 112 S. Ct. at 2898. Other owners' structures were permitted to remain and the Commission subsequently permitted construction subject to a hardship procedure. Id. The Court stated that to scrutinize a legislative governmental purpose "amounts to a test of whether the legislature has a stupid staff." Id. at 2898, n.12.

However, this analysis is not always entirely deferential. Professor Merrill analyzed the application of the governmental purpose test in takings cases and found that between 1964 and 1985 over 16% of the takings cases in state appellate courts were invalidated based on the governmental purposes prong. Thomas W. Merrill, The Economics of Public Use, 72 CORNELL L. REV. 61, 96 (1986). Professor Merrill concluded that "judicial enforcement of the public use requirement is not a thing of the past." Id. Return to text.

[158] 483 U.S. 825 (1987). In Nollan, Justice Scalia argued that the level of review in takings cases should not be so deferential to legislative judgement as in due process and equal protection cases. Id. at 834 n.3 ("[T]here is no reason to believe . . . that so long as the regulation of property is an issue the standards for takings challenges, due process challenges and equal protection challenges are identical . . . ."). Return to text.

[159] 114 S. Ct. 2309 (1994). Return to text.

[160] See Nollan, 483 U.S. at 837 (holding unconstitutional permit conditions that require a property owner to deed portions of her property to the government because the exaction was not reasonably related to the governmental purpose, and noting that such exactions can be justified only if the government "make[s] some sort of individualized determination that the required dedication is related both in nature and extent to the impact of the proposed development"); Dolan, 114 S. Ct. at 2319-20 (holding that there must be an "essential nexus" and "rough proportionality" between the governmental interest and exactions required in a land use permit).

It is not entirely clear that permit exaction cases should be treated as takings cases. In Lucas, the Supreme Court cited Nollan as a takings case in which a regulation denied a property owner all economically viable or productive use of the land. 112 S. Ct. at 2893.

Some would argue that such heightened scrutiny applies to exaction cases where there was a physical invasion. In Nollan, the California Coastal Commission required a public easement bounded by the Nollan's seawall on one side and mean high-tide mark on the other side. In Dolan, the local planning commission required Dolan to deed the city a portion of her property in and adjacent to the 100-year flood plain so that the city could control flooding and build a pathway. 114 S. Ct at 2314. Return to text.

[161] United States v. Causby, 328 U.S. 256 (1946), cited in Penn Central Transp. Co. v. City of New York, 438 U.S. 104, 105 (1981). See Sax, supra note 23, at 55-60. Return to text.

[162] See, e.g., San Antonio River Auth. v. Garrett Bros., 528 S.W.2d 266 (Tex. Civ. App. 1975) (city officials interrupted plaintiff-developer's development of his property by refusing a permit for installation of utilities because the development of the land would increase the city's costs of acquiring the land for a dam project the city was planning); Nemmers v. City of Dubuque, 716 F.2d 1194 (8th Cir. 1983) (government rezoned plaintiff's property to light industrial use, plaintiff spent a substantial amount of money to develop the property and donated substantial sums to the city and county, but the city rezoned again; the court found that the plaintiff had acquired a vested right to continue developing); Archer Gardens, Ltd. v. Brooklyn Ctr. Dev. Corp., 468 F. Supp. 609 (S.D.N.Y. 1979) (conspiracy between city and private developer to inhibit private landowner's ability to sell or lease land, which ultimately resulted in title forfeiture was a taking). See generally Sax, supra note 23; William C. Leigh and Bruce W. Burton, Predatory Governmental Zoning Practices and the Supreme Court's New Takings Clause Formulation: Timing, Value, and R.I.B.E., 1993 B.Y.U. L. REV. 827 (1993); but see Cambria Spring Co. v. City of Pico Rivera, 217 Cal. Rptr. 772 (Cal. Ct. App. 1985); Redevelopment Agency v. Contra Costa Theater, Inc., 185 Cal. Rptr. 159 (Cal. Ct. App. 1982); Toso v. City of Santa Barbara, 162 Cal. Rptr. 210 (Cal. Ct. App. 1980), cert. denied, 449 U.S. 901 (1980). Return to text.

[163] Although in takings analysis, courts do not explicitly articulate an equal protection concern in assessing the legitimacy of a regulation, markedly disparate treatment of the petitioner has clearly influenced the Supreme Court's view as to the reasonableness of the governmental entity's action. In Nollan, the Court called the Coastal Commission's permit condition "extortion" because the Court believed the Nollans were singled out and force to bear a disproportionate share of the cost of the Commission's beach access program. 483 U.S. at 835 n. 4 ("If the Nollans were being singled out to bear the burden of California's attempt to remedy these problems, although they had not contributed to it more than other coastal landowners, the State's action, even if otherwise valid, might violate [the] Takings Clause . . .."). In Lucas, the Court emphasized that Lucas's neighbors had been permitted to build dwellings and allowed to have their houses stand, while Lucas was now prohibited from building. 112 S. Ct. at 2889; but see, Penn Central, 438 U.S. at 133 ("zoning laws often affect some property owners more severely than others but have not been held to be invalid on that account"). Professor Summers justifies this higher level of scrutiny in these cases because "[w]hen individuals or small groups are singled out by government and forced to surrender property rights, they may have little ability to appeal to the political process . . . . a government that takes from a few and gives to many may be quite popular indeed." Summers, supra note 149, at 880. Return to text.

[164] Penn Central, 438 U.S. at 124. Return to text.

[165] Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982). Return to text.

[166] Hodel v. Irving, 481 U.S. 704 (1987). Return to text.

[167] Compare Penn Central, 438 U.S. at 127, 138 n.36 (emphasizing that the holding was based on the finding that Penn Central's current use of the property was "economically viable") with Lucas, 112 S. Ct. at 2893 (examining whether regulation denies "all economically beneficial or productive use of land"). Return to text.

[168] See Nollan v. California Costal Comm'n, 483 U.S. 825, 834 (1987) (citing Agins v. City of Tiburon, 447 U.S. 255, 260 (1980)) (a regulation is a taking if it denies property owner of "economic viable use" of her property); Keystone Bituminous Coal Ass'n v. DeBenedictis, 480 U.S. 470, 485 (1987); MacDonald, Sommer & Frates v. County of Yolo, 477 U.S. 340, 349 (1986); Loveladies Harbor, Inc. v. United States, 28 F.3d 1177 (Fed. Cir. 1994) (to establish individualized financial harm, petitioner had to show "a serious financial loss from the regulatory imposition."); San Diego Gas & Elec. Co. v. City of San Diego, 450 U.S. 621 (1981); Mahon v. Pennsylvania Coal Co., 260 U.S. 393, 414 (1922) ("To make it commercially impracticable to mine certain coal has very nearly the same effect for constitutional purposes as appropriating or destroying it."); see generally Lynda J. Oswald, Cornering the Quark: Investment-Backed Expectations and Economically Viable Uses in Takings Analysis, 70 WASH. L. REV. 91, 117-120 (1995). Return to text.

[169] Lucas, 112 S. Ct. at 2893 (stating that "we have found categorical treatment appropriate . . . where regulation denies all economically beneficial or productive use of land"). For Justice Scalia, total deprivation of use is comparable to physical appropriation. Id. at 2894. An exception exists if state nuisance or tort law would have permitted a total deprivation. Id. at 2900. Return to text.

[170] See, e.g., Skaw v. United States, 740 F.2d 932 (Fed. Cir. 1984), cert. denied, 488 U.S. 854 (1988); Jengsen v. United States, 657 F.2d 1213 (Ct. Cl. 1981), cert. denied, 455 U.S. 1017 (1982); Arnold v. Prince George's County, 311 A.2d 223 (Md. 1973); Bonds v. City of Webster Groves, 432 S.W. 2d 777 (Mo. Ct. App. 1968); Oriental Blvd. Co. v. Heller, 297 N.Y.S.2d 431 (App. Div. 1969). Return to text.

[171] Goldblatt v. New York, 369 U.S. 590, 592 (1962), 369 U.S. at 592 (deprivation of most beneficial use does not constitute a taking); Penn Central, 438 U.S. at 136-137; see also Graham v. Estuary Properties, 399 So. 2d 1374, 1381 (1981); Lee County v. Sunbelt Equities, 619 So. 2d 996, 1006 (Fla. 2d DCA 1993) (citing Penn Central). Return to text.

[172] Hadacheck v. Sebastian, 239 U.S. 394 (1915); Miller v. Schoene, 276 U.S. 272 (1928); United States v. Causby, 328 U.S. 256 (1946); Griggs v. Allegheny County, 369 U.S. 84 (1962); Penn Central, 438 U.S. at 136. Return to text.

[173] See generally Oswald, supra note 168; Richard A. Epstein, Lucas v. South Carolina Coastal Council: A Tangled Web of Expectations, 45 STAN. L. REV. 1369 (1993). Return to text.

[174] Penn Central is the only Supreme Court case that addresses the issue of adequate rate of return in takings law, and it does so obliquely. In Penn Central, the Court found that the railroad company's present use of the premises for its operations and leases was an adequate return. 438 U.S. at 135.

Profit is relevant to takings analysis, although the Supreme Court does not always use the term "profit." See Mahon v. Pennsylvania Coal Co., 260 U.S. 292, 414 (1922) ("What makes the right to mine coal valuable is that it can be exercised with profit."); Penn Central, 438 U.S. at 137 n.36 (ability to use property in "gainful fashion"); Lucas v South Carolina Coastal Council, 112 S. Ct. 2886, 2894 (1992) ("productive options" other than leaving land in its natural state); Hamilton Bank of Johnson City, 473 U.S. 172, 191 (1985) (not profitable to develop [only] 67 units); Keystone Bituminous Coal Ass'n, 480 U.S. at 501 (property interest cannot be used profitably by one who does not also possess the surface or mineral estate). Other courts also have been willing to consider whether the uses under the regulation permit a reasonable return. E.g., Florida Rock Indus., Inc. v. United States, 18 F.3d 1560 (Fed. Cir. 1994); Orion Corp. v. State, 109 Wash. 2d 621, 642 (Wash. 1987) ("present, possible, and reasonably profitable use"), cert. denied, 486 U.S. 1022 (1988); Hornstein v. Barry. 530 A.2d 1177 (D.C. App. 1987) ("reasonable financial return"); Wheeler v. City of Pleasant Grove, 833 F.2d 267, 271 (11th Cir. 1987) ("the landowner's loss takes the form of an injury to the property's potential for producing income or an expected profit"). However, lower courts have not uniformly accepted that profit is relevant to takings analysis. See, e.g., Park Ave. Tower Assocs. v. City of New York, 746 F.2d 135 (2d Cir. 1984) (inability of owners to receive reasonable return on their investment did not, in itself, amount to an unconstitutional taking), cert. denied, 470 U.S. 1087 (1985); William C. Haas and Co. v. City of San Francisco, 605 F.2d 1117 (9th Cir. 1979) (impairment of economic value of property due to rezoning, although substantial, was insufficient to give rise to constitutional claim to just compensation), cert denied, 445 U.S. 928 (1980); MacLeod v. County of Santa Clara, 749 F.2d 541, 549 (9th Cir. 1984), cert. denied, 572 U.S. 1009 (1985). In MacLeod, the Court found that denial of a permit to harvest timber did not deny the owner the economically viable use of the property amounting to a taking. The landowner could still raise cattle on it. The fact that the owner would not realize a profit over expenses on land did not mean that the denial of the harvesting permit was a taking. Return to text.

[175] This segmentation issue is brought into sharper focus with the mining extraction cases. Compare Mahon 260 U.S. at 414 (regulation requiring mining companies to operate mining so as not to affect habitable houses was a taking, because private deeds granted to the mining companies such rights) with Keystone Bituminous Coal, 480 U.S. at 470, 498 (taking not found where statute required mining companies to leave 27 million tons (2% of rights in coal) in place). In Lucas, Justice Scalia muses that when "a regulation requires a developer to leave 90% of a rural tract in its natural state, it is unclear whether we would analyze the situation as one in which the owner has been deprived of all economically beneficial use of the burdened portion of the tract, or . . . , [as one in which the owner] has suffered a mere diminution in value of the tract as a whole." 112 S. Ct. at 2894 n.7; see also Florida Rock Indus., Inc., 18 F.3d at 1572 n.32 ("Property interests are about as diverse as the human mind can conceive."); Jed Rubenfeld, Usings 102 YALE L. J. 1077, 1158-61 (1993). Return to text.

[176] Should a court determine whether there is a taking by measuring the residual fair market value of the property? See Florida Rock Indus., Inc., 18 F.3d at 1575 (Nies, J., dissenting) (market value of land is not relevant to takings analysis). What evidence should the court consider in determining fair market value? See id. at 1567 (whether, for the purposes of takings analysis, fair market value of property should include speculative value). Return to text.

[177] In Lucas, the relevant timeline was when the petitioner acquired the parcel. Lucas, 112 S. Ct. at 2899. But often, development of a large parcel occurs over an extended period. In Reahard, the parcel was acquired by petitioner's parents 48 years prior to petitioner's claim and developed over that period. The court remanded the case, in part, for the lower court to determine the relevant timeline. Reahard v. Lee County, 968 F.2d 1131, 1136 (11th Cir. 1992), cert. denied, 115 S. Ct. 1693 (1995). Return to text.

[178] In Lucas, Justice Scalia recognized that there are no guidelines as to what level of denial of economically viable use, short of 100%, rises to a taking and conceded that in some cases denial of 95% of economically viable use may not be a taking. Lucas, 112 S. Ct. at 2895 n.8. Past Supreme Court cases have found no taking even when denial of use was substantial. See Village of Euclid, 272 U.S. at 365 (75% diminution); Hadacheck v. Sebastian, 239 U.S. 394, 405 (1915) (88% diminution); see CALLIES ET AL., supra note 154, at 32. Return to text.

[179] Justice Scalia straightforwardly acknowledged that "[u]nsurprisingly, this uncertainty regarding the composition of the denominator in our 'deprivation' fraction has produced inconsistent pronouncements by the Court." Lucas, at 112 S. Ct. at 2895 n.7 (comparing Pennsylvania Coal Co. with Keystone Bituminous Coal Ass'n). Return to text.

[180] This concept was first mentioned as the "primary expectation concerning the use of the parcel" in Penn Central, 438 U.S. at 136. RIBE is a term of art. Accord Epstein, Expectations, supra note 173, at 1370. Return to text.

[181] See Steven Medema, Making Choices and Making Law: An Institutional Perspective on the Takings Issue, in LAW AND ECONOMICS PERSPECTIVES, supra note 24, at 45, 46 ("losses are ubiquitous: any legal change restricts someone's opportunity set, that is, engenders loss [and expands someone else's opportunity sets, that is, engenders gain.] The question that remains is whether the losers will be compensated for their losses."). Return to text.

[182] See Mahon, 260 U.S. at 412; accord Loveladies, 28 F.3d at 1176 ("the second criterion . . . was intended to ensure that not every restraint imposed by government to adjust to the competing demands of private owners would result in a takings claim"). Return to text.

[183] It is useful to begin by observing that the term used in takings jurisprudence is expectation, not interest or right. The use of the term "expectation" indicates that a property owner's expectation is something less than a legal interest or right, but something more than mere speculation. See Oswald, supra note 168, at 108. Return to text.

[184] Professor Epstein would prefer the use of the term "reasonable expectations" rather than "investment-backed" since the latter overly emphasizes whether the property owner has made an "investment," rather than whether the investor is reasonably entitled to protection under the law. Epstein, Expectations, supra note 173, at 1370. Return to text.

[185] Lucas, 112 S. Ct. at 2888 ("[T]akings jurisprudence . . . has traditionally been guided by the understandings of our citizens regarding the content of, and the State's power over the `bundle of rights' that they acquire when they obtain title to property."). Professor Epstein, explains why this formalistic view of property is important:

[P]roperty rights . . . are only of value if the holder . . . is in a position to preserve their use against all comers. Thus, there are legal rules to protect . . . exclusive rights of possession of privately owned property . . . . [Their] importance cannot be underestimated. The rules of trespass and nuisance are for the protection of property interests, and they insure that once the rights in property have been assigned to one person . . . they cannot be taken or destroyed by another individual.

[186] See Loretto, 458 U.S. at 419 (statute that permitted small television antennas to be placed on roofs was a taking); Causby, 328 U.S. at 256 (intermittent air invasions were a taking). Although Professor Tribe criticizes this group of cases as the Court's "fetish," it may reflect the Court's comfort in treating property as a "thing," TRIBE, supra note 23, at 47, see Frank Michelman, Takings, 1987, supra note 24, at 1628 ("[T]hese may be regarded as judicial devices for putting some kind of stop to the denaturalization and disintegration of property. . . . [and although] logically vulnerable, can still make sense ideologically as tokens of the limitation of government by law."); JENNIFER NEDELSKY, PRIVATE PROPERTY AND THE LIMITS OF AMERICAN CONSTITUTIONALISM 234-239 (1991). Return to text.

[187] See Hodel, 481 U.S. at 704. Return to text.

[188] See Nollan v. California Coastal Comm'n, 483 U.S. 825, 831 (1987) ("We have repeatedly held that, as to property reserved by its owner for private use, the right to exclude [others is] `one of the most essential sticks in the bundle of rights that are commonly characterized as property'."); Dolan v. City of Tigard, 114 S. Ct. 2309, 2316 (1994) ("[P]ublic access would deprive petitioner of the right to exclude others, `one of the most essential sticks in the bundle of rights that are commonly characterized as property'."). Return to text.

[189] In Lucas, Justice Scalia states that "the owner's reasonable expectations [are] shaped by the state's law of property—i.e., whether and to what degree the State's law has accorded legal recognition and protection to the particular interest in land . . .." 112 S.Ct at 2894. Return to text.

[190] Lucas, 112 S. Ct. at 2894 n.7, 2900 ("[R]egulations that prohibit all economically beneficial use of land . . . cannot be newly legislated or decreed (without compensation) but must inhere in the title itself, in the restrictions that background principles of the State's law of property and nuisance already place upon land ownership."). Return to text.

[191] Webb's Fabulous Pharmacies, Inc. v. Beckwith, 449 U.S. 155, 160 (1980); RUCKELSHAUS V. MONSANTO, 467 U.S. 986 (1984). Return to text.

[192] Penn Central Transp. Co. v. City of New York, 438 U.S. 104, 136 (1978); Graham v. Estuary Properties, Inc., 399 So.2d 1374, 1382 (1981). Return to text.

[193] The Supreme Court has equivocally defined "expectations" in the context of existing and future regulatory schemes. Justice Scalia would rule that a property owner's reasonable expectations need not factor in the possibility that a regulatory agency will alter its regulations from time to time. Lucas, 112 S. Ct. at 2900 ("[T]he notion . . . that title is somehow held subject to the 'implied limitation' that the State may subsequently eliminate all economically valuable use is inconsistent with the historical compact recorded in the Takings Clause that has become part of our constitutional culture."). On the other hand, Justice Kennedy views existing regulatory schemes as part of the background that should inform reasonable expectations. Lucas, 112 S.Ct. at 2903 (Kennedy, J., concurring) ("The State should not be prevented from enacting new regulatory initiatives in response to changing conditions, and courts must consider all reasonable expectations whatever their source . . . . Coastal property may present such unique concerns for a fragile land system that the State can go further in regulating its development and use than the common law of nuisance might otherwise permit."). Return to text.

[194] Mahon v. Pennsylvania Coal Co., 260 U.S. 292, 414 (1922) (distinguishing regulations where there was "reciprocity of advantage"); Penn Central, 438 U.S. at 135 (noting that historic preservation regulations benefit the owner of the train terminal). Return to text.

[195] In Ruckelhuas, 467 U.S. at 999, the Court held that Monsanto did not have a reasonable expectation that the EPA would not disclose trade secrets, although the applicable statute did not require the agency to refrain from such disclosures. Return to text.

[196] Generally, courts will impute to the petitioner the knowledge that a reasonably diligent property owner would have regarding existing land use regulations. See Namon v. Dept. of Envtl. Reg., 558 So. 2d 504 (Fla. 3d DCA 1990) (appellants who learned that wetlands regulations would bar construction on the property were attributed with constructive knowledge of the regulation). Some courts have been willing to apply differing standards depending on the type of regulation. See Vatalaro v. Dept. of Envtl. Reg., 601 So. 2d 1223, 1229 (Fla. 5th DCA 1992) (court found that the petitioner did not have constructive knowledge of wetland regulations but had constructive knowledge of zoning regulations). Return to text.

[197] See Kirby Forest Indus. v. United States, 467 U.S. 1, 14 (1984). Return to text.

[198] See supra note 97-98 and accompanying text. Return to text.

[199] E.g., FLORIDA ROCK INDUS. INC. V. UNITED STATES, 18 F.3d 1560 (Fed. Cir. 1994) (case remanded for fifth time). Return to text.

[200] See 1994 PROPERTY RIGHTS REPORT, supra note 28, at 57. As Professor Rose-Ackerman noted, inconsistent results contribute to a lack of confidence that courts are making just decisions. See Rose-Ackerman, supra note 24. Return to text.

[201] See Reahard v. Lee County, 968 F.2d 1131 (11th Cir. 1992), cert. denied, 115 S. Ct. 1693 (1995); EPSTEIN, TAKINGS, supra note 26, at 116 ("The asserted incoherence of legal doctrine becomes the entering wedge to allow, encourage and indeed justify judges to reach whatever result they prefer on any given state of affairs."); see generally RONALD M. DWORKIN, TAKING RIGHTS SERIOUSLY (1977). Return to text.

[202] See THE FEDERALIST NO. 10, supra note 24, at 83-84. Return to text.

[203] See ROBERT COOTER & THOMAS ULEN, LAW AND ECONOMICS (1988); Rose-Ackerman, supra note 24; WILLIAM A. FISCHEL, REGULATORY TAKINGS (1995). Return to text.

[204] EPSTEIN, TAKINGS, supra note 26. Return to text.

[205] Rose-Ackerman, supra note 24. Return to text.

[206] Rose, supra note 130, at 596-97. Return to text.

[207] Joseph L. Sax, Takings, Private Property and Public Rights, 81 YALE L.J. 149 (1971); NEDELSKY, supra note 186, at 239-40. Return to text.

[208] Perhaps the single most important factor in explaining the shift in takings analysis from Penn Central to Lucas